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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
________________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MARCH 17, 2005
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CRYOLIFE, INC.
(Exact name of registrant as specified in its charter)
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FLORIDA 1-13165 59-2417093
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
1655 ROBERTS BOULEVARD, N.W., KENNESAW, GEORGIA 30144
(Address of principal executive office) (zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (770) 419-3355
________________________________________________
(Former name or former address, if changed since last report)
________________________________
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
________________________________________________________________________________
SECTION 9 FINANCIAL STATEMENTS AND EXHIBITS.
ITEM 9.01(C) EXHIBITS.
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Arnall Golden Gregory LLP regarding legality of
the preferred stock
-2-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
CryoLife, Inc. has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CRYOLIFE, INC.
Date: March 17, 2005 By: /s/ D. Ashley Lee
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Name: D. Ashley Lee
Title: Executive Vice President,
Chief Operating Officer and
Chief Financial Officer
-3-
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Arnall Golden Gregory LLP regarding legality of
the preferred stock
-4-
Direct phone: 404-873-8500
Direct fax: 404-873-8501
www.agg.com
March 17, 2005
CryoLife, Inc.
1655 Roberts Boulevard, N.W.
Kennesaw, Georgia 30144
Re: Form S-3 Registration Statement - 400,000 Shares of Convertible
Preferred Stock
Dear Ladies and Gentlemen:
We have acted as counsel to CryoLife, Inc., a Florida corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the proposed offer and sale of up to 400,000
shares of convertible preferred stock, par value $0.01, of the Company (the
"Convertible Preferred Stock") (the Common Stock and the Convertible
Preferred Stock are collectively referred to herein as the "Securities").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of (a) the Registration Statement, (b) the Company's Articles
of Incorporation, as amended to date, (c) the Company's By-Laws, as amended to
date, (d) the proposed Articles of Amendment (the "Articles of Amendment") to
the Articles of Incorporation, describing the rights, preferences, and
limitations of the Convertible Preferred Stock, (e) resolutions of the Company's
Board of Directors, approving the Articles of Amendment, (f) the Prospectus
Supplement dated March 15, 2005 (the "Prospectus Supplement") for the offer and
sale of the Convertible Preferred Stock, (g) certificates of officers or other
representatives of the Company, and (h) such other certificates, statutes and
other instruments and documents as we considered appropriate for purposes of the
opinions hereafter expressed. As to any facts material to the opinions contained
herein, we have made no independent investigation of such facts and have relied,
to the extent that we deem such reliance proper, upon certificates of public
officials and officers or other representatives of the Company.
In connection with rendering the opinions set forth below, we have assumed
that (i) all information contained in all documents reviewed by us is true and
correct; (ii) all signatures on all documents examined by us are genuine; (iii)
all documents submitted to us as originals are authentic and all documents
submitted to us as copies conform to the originals of those documents; (iv) the
Registration Statement, and any amendments thereto (including post-effective
amendments), remain effective and comply with all applicable laws; and (v) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto.
CryoLife, Inc.
March 17, 2005
Page 2
Based on the foregoing, and subject to the assumptions, qualifications,
limitations, and exceptions set forth herein, we are of the opinion that:
(a) The Convertible Preferred Stock, when sold and after receipt of payment
therefore as contemplated in the Prospectus Supplement, will be validly issued,
fully paid and non-assessable.
(b) The Common Stock issuable upon conversion of the Convertible Preferred
Stock, together with the Common Stock issuable under certain circumstances
pursuant to the "make-whole" payment provisions of the Convertible Preferred
Stock, has been duly and validly authorized and reserved for issuance and, when
and if issued upon valid conversion of the Convertible Preferred Stock in
accordance with the Articles of Amendment, will be validly issued, fully paid
and non-assessable.
We express no opinions concerning the enforceability of indemnification
provisions to the extent they purport to relate to liabilities resulting from or
based upon negligence or any violation of federal or state securities or blue
sky laws.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit and the benefit of the purchasers of
the Convertible Preferred Stock. This opinion may not be relied upon by you for
any other purpose, or relied upon by any other person, firm, corporation or
other entity for any purpose, without our prior written consent. We disclaim any
obligation to advise you of any change of law that occurs, or any facts of which
we may become aware, after the date of this opinion. We are qualified to
practice law only in the State of Georgia. We do not purport to be an expert on
the laws of any jurisdiction other than the laws of the State of Georgia, the
Florida Business Corporation Act and the laws of the United States of America
and we express no opinion herein as to the effect of any other laws.
We consent to the filing of this opinion as an exhibit to the Form 8-K of
the Company and/or the Registration Statement and the reference to this firm
under the caption "Legal Matters" contained therein and elsewhere in the
Registration Statement. This consent is not to be construed as an admission that
we are a party whose consent is required to be filed with the Registration
Statement under the provisions of the Securities Act of 1933, as amended.
Sincerely,
ARNALL GOLDEN GREGORY LLP